New York continues to rely on the Frye test

Defendant was indicted for two counts of first degree rape, two counts of endangering the welfare of a child, and one count of unlawfully dealing with a child pornography, and defendant moved to suppress a statement he made to Sheriff’s Department Investigator and a letter he wrote to the victim. A hearing was held thereafter.

A Nassau County Criminal attorney said that in June 2006, an Investigator was contacted at home and asked to go to a General Hospital to begin a rape investigation. After speaking with the victim, he went to defendant’s residence and asked if he would talk with the detective about the incident. Because there were other people present in defendant’s home, the investigator and defendant went to a restaurant in Olean. Defendant rode in the front of the car, uncuffed and unshackled. At the restaurant, they spoke about the incident and investigator took down the information on his laptop. Before they left, Investigator told defendant not to have any contact with the victim but if defendant wanted to write the victim, the Investigator would insure that she received whatever defendant wrote. Defendant then wrote a note to the victim and gave it to the Investigator.

After the hearing, the court denied the motion to suppress the statements and scheduled a trial. Defendant has since served notice that he intends to call as a witness who will testify that defendant’s statement is false “in whole or part,” and that the investigator’s techniques and methods were “defective” and “likely to produce inaccurate statements.” Significantly, there was very little cross-examination at the hearing about any techniques or methods employed by Investigator. The District Attorney has now moved to preclude the witness’ testimony on the grounds that it has not gained general acceptance in the scientific community, is irrelevant, and would usurp the jury’s fact finding function.

Clearly, the court would not allow the witness to testify that the statement given by defendant is false as that is a question exclusively for the jury. With respect to the other issues, New York continues to rely on the Frye test for the admissibility of novel evidence. Part of the criteria is that the testimony must be based on principles that are generally accepted in the relevant scientific community.

The Third Department has excluded this kind of testimony on the basis that it lacked the “certainty that would give it probative force”. Further, in a case, the Appellate Division in our Department held that the trial court properly precluded expert testimony concerning a victim’s veracity and suggestibility.

Defendant references two cases in support of his contention that the testimony should be admitted, which the court could not locate, and the other case. There, the Justice conducted a 12 day Fye hearing, after which he permitted, as a matter of discretion, the testimony of a doctor with respect to his studies on the voluntariness of confessions generally and the phenomenon of false confessions. However, the doctor who is the co-author of a treatise was not permitted to testify.

The criminal court believes it is bound by Appellate Division decisions in other Judicial Departments in the absence of contrary authority in the Fourth Department. Therefore, the Third Department having spoken directly to this issue, the motion of the District Attorney must be granted and the proposed testimony precluded.

The court notes that it would reach the same conclusion on the facts of this rape case. In a case, the defendant had been interrogated for over 15 hours, was deprived of food and drink, was not allowed to speak with his girlfriend, may have been under the influence of alcohol, drugs, or both, and may have been misled about his polygraph results. Here, defendant met with Investigator Welling in a non-custodial, public place. There is no showing that the proposed testimony would be at all relevant in this case.

Criminal cases should be entrusted to lawyers who will stand by your right and defend you at all times. Here in Stephen Bilkis and Associates, our Nassau County Criminal attorneys will defend and protect you at all times in court. We also have Nassau County Sexual Abuse lawyers who will help you enforce your right and lets you know of your rights as a victim. Call us now, we will be glad helping you.